The cost of losing the code: historical protection of public debate in Australian defamation law.

• Jurisdiction: Australia
• Author: Kenyon, Andrew T.
• Date: 01 December 2014

Defamation law in some Australian jurisdictions formerly provided strong protection for media publication on matters of public interest. In particular, the qualified protection defence in the Queensland defamation Code, introduced in the late 19th century, protected robust political debate. This article explores the common law origins of the Code defence, before considering its adoption elsewhere in Australia and its strength in operation. Notable judgments emphasised the defence's protection of widely published and forthright political speech. New South Wales removed the Code defence in the 1970s without any intention to weaken such protection. Soon afterwards, the defence was excluded from operation in Western Australia by what has been called a drafters foible. The litigation involved speech as political as could be imagined, but that context was not addressed by courts. More recently, Australia's uniform defamation laws ended the Code defence as an express element in the doctrine. Understanding the history of its introduction, operation and loss suggests defamation law could offer a stronger defence for public speech. Indeed, the history may suggest the uniform laws' statutory privilege defence warrants a far stronger interpretation. Losing the Code has had underappreciated costs to public speech; understanding the history suggests ways in which they could be addressed.

CONTENTS I Introduction II Prior Common Law Decisions III Enactment of the Code Defence IV The Code Defence in Operation V Replacing the Code Defence in New South Wales VI Western Australia: Foibles of Drafting and Ignoring Political Speech VII Conclusion I INTRODUCTION

Defamation law is said to protect publications on matters of public interest through a range of defences. Under Australia's uniform defamation laws, (1) there are defences, for example, related to a publication's truth, the speaker's honest opinion, and fair reports of proceedings such as parliamentary debates or court hearings. (2) Instances of public interest speech can be protected by one or more of these defences, but the technical complexities of the law can make them less available than initially apparent. For example, the availability of truth and opinion defences in Australian law became markedly limited in comparison to the English position due to the imputation-based approach that developed in New South Wales under the Defamation Act 1974 (NSW). (3) This required truth and comment defences to meet precisely the plaintiff's imputation. The effect was to increase the power of plaintiff lawyers to shape disputes through careful pleading. Defence arguments about truth or opinion that could well succeed under English law could not even be advanced in Australia due to this approach. Important aspects of the approach have continued under the uniform laws despite those laws formally ending the imputation-based approach to the cause of action. All this makes Australian law notably more favourable to plaintiffs, at least where those plaintiffs have the necessary resources to sue. (4)

None of the defences concerning truth, opinion or fair reports are particularly well suited to accommodating ordinary public debate. Such debate includes more than material capable of being proven true in court. (5) Nor is debate necessarily polite and carefully measured. This is well recognised elsewhere in Australian law in relation to political speech. For example, in Coleman v Power it was noted that, while some may desire political debate to contain less superficiality, less invective, more logic and more persuasion, 'insult and emotion are central to 'the struggle of ideas'. (6) Law 'does not protect only the whispered civilities of intellectual discourse'. (7) This approach was endorsed more recently in Monis v The Queen:

Political debate and discourse is not, and cannot be, free from passion. It is not, and cannot be, free from appeals to the emotions as well as to reason. It is not, and cannot be, free from insult and invective. Giving and taking offence are inevitable consequences of political debate and discourse. (8) Although in Monis v The Queen the protection of reputation was noted as a legitimate constitutional end, (9) the robust qualities of debate endorsed there and in Coleman v Power remain striking when compared with much of current defamation law.

The defences of truth, opinion and fair report privilege offer limited protection to public debate, particularly when compared with some forms of qualified privilege defence under the Codes. This article does not seek to establish that stronger protection is necessarily warranted, although much existing literature suggests that it is needed, (10) and our own work--doctrinal and empirical, individual and joint, across a wide range of jurisdictions--would support greater protection of public interest speech. In addition, the law in some comparable jurisdictions, notably England and Wales, has undergone successive reform to strengthen qualified privilege-style defences. The 'Reynolds defence in England, (11) while recognised as having weaknesses in practice, was markedly more effective at protecting some forms of public interest speech than Australian law whether using Lange v Australian Broadcasting Corporation ('Lange'), (12) the statutory defence under s 22 of the Defamation Act 1974 (NSW), or s 30 of the uniform Defamation Acts. (13) The principles from Lange, for example, appear to have provided 'a barely usable defence'. (14) Even though English law was already more effective in this aspect of protecting public speech, concerns with the weakness of the English approach have recently seen the Reynolds defence replaced by a statutory defence for publication on matters of public interest. (15) Rather than consider these points more closely, here we examine the stronger protection that has existed historically within Australia, ask how it has been lost and consider what that suggests for possible reform.

Considerable protection for public debate existed under past defamation Codes in Australia. Queensland gained a defamation Code late in the 19th century. (16) The model provided by the Defamation Act 1889 (Qld) in Queensland was quickly adopted in Tasmania. (17) It was also adopted in New South Wales under the Defamation Act 1958 (NSW) until being replaced by the Defamation Act 1974 (NSW). A similar Code was enacted in Western Australia, but only some of its defences were held to apply to civil defamation actions. (18) The term 'Code' is used here in accordance with the case law and literature although the various pieces of legislation were not all strictly codes, with certain aspects of common law defamation continuing to operate. (19) One of the more interesting aspects of the Code was the form of qualified privilege it provided. Called a qualified 'protection rather than 'privilege', it is identified here simply as the Code defence by way of shorthand. It is not clear that the value of the Code defence was widely recognised, and its demise is an ironic loss to the protection of public speech under the uniform Defamation Acts. The uniform laws, which have generally been seen as strengthening free speech, (20) have at the same time undermined one strong protection for speech by removing the Code defence.

Part II examines common law qualified privilege before the Code's creation. Broader aspects of the common law defence were supported in the Code's enactment, as summarised in Part III. The Code's operation is outlined in Part IV, especially the way in which it offered strong protection for media publications. The replacement of the Code in New South Wales and the judicial exclusion of the Code defence from civil actions in Western Australia are considered in Parts V and VI. It is striking that the New South Wales changes were not made to reduce, in any substantial sense, the protection offered by the Code defence. Indeed, the replacement statutory provision in s 22 of the Defamation Act 1974 (NSW) was intended to offer largely equivalent protection to the Code defence. Equally striking, in the Western Australian context, the formal legal question addressed in the central Full Court and High Court decisions completely obscured the political quality of the speech in question. The publication in issue involved the type of speech that the High Court had recently said was of central importance for protection by the Code defence. Understanding the history underlying the Code defence's introduction, operation and loss could suggest that the current statutory defence under the uniform defamation laws warrants a far stronger interpretation which would bring it into line with most aspects of the Code defence. (21) It appears that losing the Code has had underappreciated costs, and the history of the defence suggests ways in which they could be addressed.

II PRIOR COMMON LAW DECISIONS

Various categories of qualified privilege have been recognised for the common convenience and welfare of society'. (22) The defence came to require publishers to be under a legal, social, or moral duty, or to be acting to protect an interest, and recipients to have a corresponding duty or interest. (23) This requirement of reciprocity meant that media defendants could generally not use the defence. The situation continues under Australian common law. (24) The requirement of reciprocity, however, was not always explicit in the cases.

The classic starting point in qualified privilege case law remains the 1834 decision in Toogood v Spyring. (25) In delivering the Court of Exchequers decision, Parke B stated that privilege arises where statements are

fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice ... and affords a qualified defence depending upon the absence...